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The NIW and the Post-doc: Recent Trends

 An appealing avenue to permanent residence for many postdocs is the EB-2 Advanced Degree Professional category, accompanied by a waiver of the labor certification requirement in the national interest, or “national interest waiver” (NIW). This waiver has the advantage of allowing self-sponsorship, and the eligibility requirements for an NIW may be met by a researcher still early in his or her career. But there are also disadvantages. Any retrogression in the EB-2 category will affect NIW cases. Further, although the criteria may be met by a postdoc, there is no guarantee, and there are indications adjudication in this category is becoming more stringent.

The basic eligibility requirements are that the individual’s area of endeavor be of “intrinsic worth;” that the benefit of his or her involvement in it be national in scope; and that, essentially, the value of the foreign national’s contribution to the field outweigh the protective value of labor certification to the American labor market. Virtually every field meets the first requirement, and most can be shown to meet the second. However, the third is every bit as difficult to show as it sounds. This is not because a foreigner’s contribution isn’t of great value, but because the court decision that set forth these guidelines includes no measurement system. Thus, there is no standard way of measuring either the value of the contribution or the value of labor certification, let alone of comparing them.

The strongest type of evidence to present, then, is a letter from a U.S. federal agency stating the petitioner’s work is crucial to the national interest. Even then, the letter must mention specific achievement and must be submitted by someone in a position of authority. Support letters from non-government authorities in the field are of decreasing use; USCIS’ position is that if a contribution was valuable enough to meet the standard, unsolicited evidence such as citation statistics or news reports ought to be available. Further -- and frustrating as it sometimes can be -- even if a major news story features research on which the beneficiary was first author, that story must specifically mention the beneficiary, if not prominently feature him or her. Since these types of articles often refer primarily to the principal investigator, they can undercut the claim that it is the beneficiary’s work that is important.

Another description of what needs to be shown is “wide impact” in the field or “impact in the field as a whole.” In addition to the evidence noted above, this could include awards or other official recognition, invitations to speak at national conferences or to author scholarly commentary. All these items too must be unsolicited and at least national in scope; an invitation to speak at the local chapter of a professional society would not evidence national impact required by the national interest waiver.

Yet another statement of the standard is that the beneficiary must be shown to be more qualified than others in the field, to a degree justifying the waiver. Recently neither unique expertise nor a rare combination of expertises has been acceptable evidence of “greater” qualification, and a shortage of Americans in the field has never been qualifying evidence of eligibility for the NIW. However, showing that the beneficiary is consulted by many other, or by expert, researchers might support a claim for relatively great qualification.

Due to the vague wording governing qualification for the NIW, the immigration legal practitioner with experience filing these cases sees many alternate statements of the evidence required. Despite that difficulty, the NIW still has many advantages to offer the postdoctoral research who has done notable work – and can show it.


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